Citation Nr: 1510664
Decision Date: 03/13/15 Archive Date: 03/24/15
DOCKET NO. 13-03 923 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to recognition as the Veteran's surviving spouse for the purposes of VA benefits.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. S. Kyle, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1963 to March 1966, including one year and five months of service in the Republic of Vietnam.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that the appellant was not the surviving spouse of the Veteran for purposes of VA benefits.
The appellant testified at hearing before the undersigned in March 2013. A transcript of the hearing is available on the Virtual VA.
FINDINGS OF FACT
1. The Veteran and the appellant last married on May [redacted], 2003.
2. The Veteran and the appellant divorced on January [redacted], 2005, and never attempted to remarry.
3. The Veteran died on July [redacted], 2010.
CONCLUSION OF LAW
The criteria for recognition of the appellant as the Veteran's surviving spouse have not been met. 38 U.S.C.A. §§ 101, 103, 1102 (West 2014); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54, 3.206 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
The determinative facts in this case are not in dispute; therefore, the law, and not the underlying facts or development of the facts, is dispositive. As such, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations concerning notice and assistance do not apply. See Manning v. Principi, 16 Vet. App. 534 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).
Further, to the extent that there is any factual dispute, general due process considerations have been satisfied. The appellant has been notified of the evidence and information necessary to prove her claim and has had ample opportunity to present evidence and arguments. She has, in fact, done so, including by way of presenting testimony at a personal hearing before a decision review officer and before the undersigned. Both hearing officers notified the appellant of the missing elements, including that she must show that she was legally married to the Veteran at the time of death to be entitled to survivor benefits, and asked questions in an attempt to elicit relevant information. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103. All available, identified evidence has been obtained. The paper claims file and electronic claims files in Virtual VA has been reviewed and considered. All pertinent evidence is also associated with the paper claims file. Moreover, the appellant waived review of any additional evidence by the agency of original jurisdiction in March and April 2013 statements. As such, no further notice or assistance is necessary for a fair adjudication in this case.
Analysis
VA benefits may be paid to a surviving spouse who was married to the Veteran one year or more prior to the Veteran's death, or for any period of time if a child was born of the marriage. 38 U.S.C.A. § 1102; 38 C.F.R. § 3.54.
The term "surviving spouse" means a person (1) who was married to a Veteran at the time of the Veteran's death; (2) who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the Veteran without the fault of the surviving spouse); and (3) who has not remarried or (in cases not involving remarriage) has not since the death of the Veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
The appellant filed a claim for survivor benefits in August 2010. The appellant initially reported she married the Veteran in May 2003 and never divorced him before his death; however, she subsequently submitted a divorce decree, which indicates they were legally divorced in January 2005.
During the March 2013 hearing, the appellant admitted she knew she and the Veteran were divorced at the time of his death. She explained the Veteran suffered from post-traumatic stress disorder (PTSD) and was abusive toward her when they were legally married because he felt like she was his "prisoner."
She further explained he treated her better when they were divorced, but still living together, because he had to worry about her leaving. The appellant related a similar account to a DRO in November 2012. In sum, the appellant asserts that her divorce from the Veteran was through no fault of her own, but rather to alleviate his feelings of being "tied down" so he would not be abusive toward her. She further asserts that she was the Veteran's common law spouse at the time of his death because they continued to live together after their divorce.
As a predicate matter, the appellant cannot be considered the Veteran's common law spouse at the time of his death. For purposes of VA benefits, the validity of a marriage is determined "according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued." 38 U.S.C.A. § 103(c); 38 C.F.R. §3.1(j). The state of Pennsylvania abolished common law marriage effective January 2, 2005. Section 1103 of the Pennsylvania Domestic Relations Code states that "[n]o common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005 invalid." 23 PA. STAT. ANN. § 1103. The appellant divorced the Veteran on January [redacted], 2005; therefore, she could not have entered into a valid common law marriage with the Veteran because the state of Pennsylvania did not recognize common law marriages after their divorce.
Further, the appellant and the Veteran cannot be considered to have reestablished a "deemed valid" marriage for VA purposes after their divorce. Where an attempted marriage is invalid by reason of legal impediment, it may be "deemed valid" if: (a) the attempted marriage occurred one year or more before the Veteran died; and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabited with the Veteran continuously from the date of the attempted marriage until death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 C.F.R. § 3.52. The determination regarding knowledge of a legal impediment is viewed in terms of "what the appellant's state of mind was at the time that the invalid marriage was contracted." Dedicatoria v. Brown, 8 Vet. App. 441, 444 (1995). When a surviving spouse submits proof of marriage and meets the requirements for a deemed valid marriage, VA will accept the surviving spouse's statement that he or she had no knowledge of an impediment to marriage, absent information to the contrary. 38 C.F.R. § 3.205(c).
While a state's failure to recognize common law marriage would constitute a legal impediment to such a marriage for purposes of 38 U.S.C.A. § 103(a), the deemed valid marriage provisions are inapplicable in the appellant's case because she did not "attempt" to enter into a marriage with the Veteran after their divorce. She has not reported such an event and there is no other evidence any attempt to marry following their divorce.
Her testimony indicates that although she described herself and the Veteran as living together as "man and wife" after their divorces, she did not intend to enter into a legally binding marriage, because the Veteran treated her better without the constraints of marriage.
The appellant testified that she knew she was not married to the Veteran at the time of his death, and her testimony indicates that she was aware of the divorce at all times subsequent to the divorce. She testified that she asked the Veteran to leave several times after their divorce. Even though her actions are may have been justified by the reported abuse, the provision relating to the misconduct of the Veteran in 38 C.F.R. § 3.50(b)(1) has no application in the context of a deemed valid marriage determination pursuant 38 C.F.R. § 3.52 and serves only as a limited exemption for abuse victims who fail to meet the cohabitation requirements of 38 C.F.R. § 3.50. See Burden v. Shinseki, 727 F.3d 1161, 1170-71. Furthermore, in a November 2012 statement, the appellant indicated she and the Veteran divorced because she "did not want to incur his debt." Thus, the preponderance of evidence establishes the appellant and the Veteran did not attempt to remarry before he died.
Because she has failed to establish an attempted marriage, the appellant is not entitled to the presumption that she had no knowledge that the state of Pennsylvania no longer recognizes common law marriage, and she cannot be considered to have entered into a "deemed valid marriage" with the Veteran before his death. 38 C.F.R. § 3.52. Accordingly, her claim for entitlement to recognition as the Veteran's spouse for the purposes of survivor benefits must be denied.
ORDER
Entitlement to recognition as the Veteran's surviving spouse for the purposes of VA death benefits is denied.
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs